AN ACT to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §49-5-13g; and to
amend said code by adding thereto a new section, designated
§61-8C-3b, all relating to relating to juvenile proceedings;
proscribing juveniles from manufacturing, possessing and
distributing nude or partially nude images of minors;
declaring a violation to be an act of juvenile delinquency and
providing for the punishment thereof; authorizing the
development of an educational diversion program for minors
engaged in delinquent offenses associated with sexting and
related offenses; delineation of sexting and associated
offenses; providing for the establishment of a specialized
diversion program by the West Virginia Supreme Court of
Appeals for sexting by minors and associated offenses;
suggested scope and topics to be included in such specialized
diversion program; providing for the participation in the
diversion program as a part of a pre-petition diversion and
informal resolution in advance of a filed petition, as part of
a required counseling plan, or as part of an improvement
period requirement established in advance of adjudication;
consideration of successful completion of specialized
diversion program on first offense and subsequent offenses;
and allowing for court discretion as to whether adjudicated
juvenile should be required to register as a sex offender as
a result of adjudication as status offender for sexting and
related offenses.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §49-5-13g; and that
said code be amended by adding thereto a new section, designated
§61-8C-3b, all to read as follows:

CHAPTER 49. CHILD WELFARE.

ARTICLE 5. JUVENILE PROCEEDINGS.

§49-5-13g. Sexting educational diversion program.

(a) Before a juvenile petition is filed for activity
proscribed by article eight-a or eight-c, chapter sixty-one of this
code, or after probable cause has been found to believe a juvenile
has committee a violation thereof, but before an adjudicatory
hearing on the petition, the court or a prosecuting attorney may
direct or allow a minor who engaged in such activity to participate
in an educational diversion program which meets the requirements of
subsection (b) of this section. The prosecutor or court may refer
the minor to the educational diversion program, as part of a pre-petition diversion and informal resolution pursuant to the
provisions of section two-a of this article; as part of counseling
provided pursuant to the provisions of sections three or three-a of
this article; or as part of the requirements of an improvement
period to be satisfied in advance of an adjudicatory hearing
pursuant to the provisions of section nine of this article.

(b) The West Virginia Supreme Court of Appeals may develop an
educational diversion program for minors who are accused of
activity proscribed by the provisions of article eight-a or eight-c, chapter sixty-one of this code. As a part of any specialized
educational diversion program so developed, the following issues
and topics should be included:

(1) The legal consequences of and penalties for sharing
sexually suggestive or explicit materials, including applicable
federal and state statutes;

(2) The nonlegal consequences of sharing sexually suggestive
or explicit materials including, but not limited to, the effect on
relationships, loss of educational and employment opportunities,
and being barred or removed from school programs and
extracurricular activities;

(3) How the unique characteristics of cyberspace and the
Internet, including searchability, replicability and an infinite
audience, can produce long-term and unforeseen consequences for
sharing sexually suggestive or explicit materials; and

(4) The connection between bullying and cyber-bullying and
minors sharing sexually suggestive or explicit materials.

(c) Once a specialized educational diversion program is
established by the West Virginia Supreme Court of Appeals
consistent with the provisions of this section, the minor’s
successful completion of the educational diversion program shall be
duly considered by the prosecutor or the court in their respective
decisions to either abstain from filing the juvenile petition or to
dismiss the juvenile petition, as follows:

(1) If the minor has not previously been judicially determined
to be delinquent, and the minor’s activities represent a first
offense for a violation of section three-b, article eight-c,
chapter sixty-one of this code, the minor shall not be subject to
the requirements of said section, as long as he or she successfully
completes the educational diversion program; and

(2) If the minor commits a second or subsequent violation of
article eight-a or eight-c, chapter sixty-one of this code, the
minor’s successful completion of the educational diversion program
may be considered as a factor to be considered by the prosecutor
and court in deciding to not file a petition or to dismiss a
petition, upon successful completion of an improvement plan
established by the court.

CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 8C. FILMING OF SEXUALLY EXPLICIT CONDUCT OF MINORS.

§61-8C-3b. Prohibiting juveniles from manufacturing, possessing
and distributing nude or partially nude images of
minors; creating exemptions; declaring a violation to
be an act of juvenile delinquency; and providing for
the punishment thereof.

(a) Any minor who intentionally possesses, creates, produces,
distributes, presents, transmits, posts, exchanges, or otherwise
disseminates a visual portrayal of another minor posing in an
inappropriate sexual manner or who distributes, presents,
transmits, posts, exchanges or otherwise disseminates a visual
portrayal of himself or herself posing in an inappropriate sexual
manner shall be guilty of an act of delinquency and upon
adjudication disposition may be made by the circuit court pursuant
to the provisions of article five, chapter forty-nine of this code.

(b) As used in this section:

(1) “Posing in an inappropriate sexual manner” means
exhibition of a bare female breast, female or male genitalia, pubic
or rectal areas of a minor for purposes of sexual titillation.

(2) “Visual portrayal” means:

(A) A photograph;

(B) A motion picture;

(C) A digital image;

(D) A digital video recording; or

(E) Any other mechanical or electronic recording process or
device that can preserve, for later viewing, a visual image of a
person that includes, but is not limited to, computers, cellphones,
personal digital assistance and other digital storage or
transmitting devices;

(c) It shall be an affirmative defense to an alleged violation
of this section that a minor charged with possession of the
prohibited visual depiction did neither solicit its receipt nor
distribute, transmit or present it to another person by any means.

(d) Notwithstanding the provisions of article twelve, chapter
fifteen of this code, an adjudication of delinquency under the
provisions of this section shall not subject the minor to the
requirements of said article and chapter.